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In re Vivendi Universal, S.A. Securities Litigation

United States District Court, S.D. New York

August 10, 2012

In re VIVENDI UNIVERSAL, S.A. SECURITIES LITIGATION. This Document Relates to: 03 Civ. 5911 07 Civ. 7370 07 Civ. 8156 07 Civ. 11484 09 Civ. 2568 09 Civ. 2592 09 Civ. 2603 09 Civ. 7962.

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Stuart M. Grant, Esq., James J. Sabella, Esq., Diane Zilka, Esq., Christine M. Mackintosh, Esq., Grant & Eisenhofer P.A., New York, NY, Stuart L. Berman, Esq., John A. Kehoe, Esq., Kessler Topaz Meltzer & Check, LLP, Radnor, PA, Mark S. Arisohn, Esq., Joseph A. Fonti, Esq., Labaton Sucharow LLP, New York, NY, for Individual Plaintiffs.

Vincent R. Cappucci, Esq., Evan T. Raciti, Esq., Entwistle & Cappucci LLP, New York, NY, for GAMCO Plaintiffs.

Daniel Slifkin, Esq., Paul C. Saunders, Esq., Timothy Gray Cameron, Esq., Cravath, Swaine & Moore LLP, New York, NY, Penny Packard Reid, Esq., James W. Quinn, Esq., Weil, Gotshal & Manges LLP, New York, NY, for Defendant Vivendi, S.A.

Michael J. Malone, Esq., King & Spalding LLP, New York, NY, for Defendant Jean-Marie Messier.

Martin L. Perschetz, Esq., Michael Everett Swartz, Esq., Schulte Roth & Zabel LLP, New York, NY, for Defendant Guillaume Hannezo.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

Numerous plaintiffs filed individual actions after being excluded from the certified class action In re Vivendi Universal, S.A. Securities Litigation (the " Individual Plaintiffs" ).[1] Most of the Individual Plaintiffs had their claims dismissed pursuant to Morrison v. National Australia Bank Ltd. [2] on April 30, 2012 and May 17, 2012.[3] At a conference held on April 24, 2012, I instructed the remaining Individual Plaintiffs,[4] the GAMCO Plaintiffs,[5] and the defendants [6] to submit motions seeking to apply rulings from the class action and

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Liberty Media v. Vivendi Universal S.A. [7] to the Individual Plaintiffs and GAMCO Plaintiffs actions, which have long been dormant, in an effort to move them toward a resolution. Defendants moved to apply the damages methodology from the July 5, 2012 Opinion and Order in the class action [8] to the Individual Plaintiffs and GAMCO Plaintiffs actions. The Individual Plaintiffs and GAMCO Plaintiffs moved for collateral estoppel on certain issues based on the jury verdict in the class action and the April 11, 2012 Opinion and Order granting collateral estoppel in Liberty Media. [9] For the following reasons, defendants' motions are granted and plaintiffs' motions are granted in part and denied in part.

II. DAMAGES METHODOLOGY

In the July 5, 2012 Opinion and Order, I ruled, with respect to the class action, that " damages will be computed using LIFO [last-in, first-out], where sales of Vivendi ADSs during the Class Period will be matched against the last ADSs acquired by a particular Class Member." [10] Likewise, if any Individual Plaintiffs or GAMCO Plaintiffs succeed in establishing liability against any of the defendants, a LIFO methodology will be applied to calculate that plaintiff's damages for the reasons more fully described in the July 5, 2012 Opinion and Order.[11]

I also adopted a partial netting methodology for calculating damages in the class action.[12] Under this methodology, " only those gains resulting from transactions occurring between the first materialization date and the end of the Class Period will be used to offset losses incurred during that very same period." [13] To avoid any doubt, a subsequent Order phrased that ruling in another manner: " the gains a class member accrues from selling any shares after the first materialization date offset a class member's aggregate loss, regardless of when those shares were purchased." [14] For the reasons stated in the July 5, 2012 Opinion and Order,[15] the partial ...


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